E.J. Montini began writing news columns for The Arizona Republic shortly before the first governor in state history was impeached, continued doing so as another governor was indicted and resigned, and has carried on over 25 years through out-of-control urban sprawl, unchecked illegal immigration, increasing daily temperatures, decreasing rainfall and recession. Coincidence?

Time to end war on gay state employees

Before Arizona voters decide if same-sex couples should be permitted to marry Gov. Jan Brewer must decide if Arizona wants to continue punishing such couples for not being married.

Particularly when the people we‚Äôre talking about work for the state.

You‚Äôd think by now we‚Äôd have come to a better understanding of fairness and equal rights when it comes to same-sex couples and their families.

You‚Äôd be wrong.

At least for now.

Back in 2008, then-Gov. Janet Napolitano decided that Arizona should provide domestic-partner benefits for state workers in same-sex relationships.

A year later, the Legislature passed a law, supported by Gov. Brewer, overturning that policy.

The Legislature‚Äôs decision was challenged in court by some state workers.

In the summer of 2010 U.S. District Court Judge John Sedwick issued a preliminary injunction against the state, saying benefits for lesbian and gay families must continue while the case moved forward.

Arizona appealed that decision.

In 2011 a three-judge panel of the Ninth Circuit Court of Appeals upheld the preliminary injunction.

The state appealed again.

(Are you sensing a pattern here?)

Last year, the Ninth Circuit denied a request of Arizona State officials for an en banc rehearing (meaning a hearing before the full court).

The state then asked the U.S. Supreme Court to take the case.

This week, at the same time the Supreme Court issued its historic rulings on same-sex marriage, it declined to hear the Arizona case.

If Gov. Brewer and Attorney General Tom Horne choose to continue pursuing the case there eventually will be a trial before Judge Sedwick, the person who issued the initial injunction.

And for what?

To argue in favor of discrimination?

Local attorney Dan Barr, who has worked with the attorneys from Lambda Legal who are representing state employees told me if this case was a Little League game the ‚Äúmercy rule‚ÄĚ would have been applied and the game declared over.

He added, ‚ÄúThe state created a Catch 22 for gay state employees and their same-sex partners. ‚ÄėSure we will give you family health care benefits if you are married, but too bad you cannot get those benefits because we won’t allow you to get married.‚Äô In doing so, the State is compensating one group of employees differently than another. As both Judge Sedwick and the 9th Circuit have stated the state cannot unconstitutionally discriminate amongst its employees for financial reasons.‚ÄĚ

Gov. Brewer appears to disagree.

She issued a statement Thursday saying in part, ‚ÄúWith its decision today, the Supreme Court has not only upheld the preliminary injunction of an economically-prudent, practical state law. It has also undercut the ability of duly-elected State officials to make decisions critical to managing the State budget.

‚ÄúThis case has never been about domestic partners, same-sex or otherwise. It is always been about the authority of elected State officials to make decisions with which we have been entrusted by the voters. I‚Äôm disappointed the High Court has eroded that authority with its decision today.‚ÄĚ

The judges of the Ninth Circuit didn‚Äôt see it that way.

The panel members looking at the case said: “The state is correct in asserting that state employees and their families are not constitutionally entitled to health benefits. But when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular.”

Every legal case boils down to people.

In this case we‚Äôre talking about good, hard-working, loyal state employees.

I‚Äôve written about some of them over the years.

Like DPS Officer Tracy Collins, who works outside of Quartzsite and is helping to raise her partner’s two daughters. And Keith Humphrey, assistant vice president for Student Affairs at the University of Arizona. He and his partner serve as foster parents. Or wildlife manager Deanna Pfleger, law professor Carrie Sperling, marketing coordinator Leslie Kemp and UA leadership program director Corey Seemiller.

These are people who work hard for the state, who live here, raise children here.

By preventing the governor from treating these people like second-class citizens Brewer says the courts have ‚Äúeroded‚ÄĚ her ‚Äúauthority.‚ÄĚ

Not exactly.

They simply pointed out that in a nation built on equality no such ‚Äúauthority‚ÄĚ exists.

(Column for June 28, 2013, Arizona Republic)

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